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Each of the three participating countries in the U.S.-Mexico-Canada Agreement (USMCA) is about to submit the new free trade agreement for its respective Congress' approval. Along with the many changes that the new agreement brings, there has been some unease regarding the current protections in the energy sector. Interpretation of Chapter 8 of the agreement has led to an incorrect notion, reflected by some stakeholders, that the USMCA contains no obligations for Mexico in the hydrocarbons sector. This Holland & Knight alert identifies where to find the key provisions for U.S. investors in the hydrocarbons market.
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On March 29, 2019, Gov. Gretchen Whitmer announced the formation of a science advisory workgroup and her order for the Michigan Department of Environment, Great Lakes, and Energy (EGLE), formally the Michigan Department of Environmental Quality (DEQ), to initiate rulemaking to establish enforceable limits for the presence of per- and polyfluoroalkyl substances (PFAS) in Michigan's drinking water. PFAS are a category of man-made chemicals that have been widely used to make products because of their stain-resistant, waterproof and/or nonstick properties and are also in fire-fighting foam.

By way of background, in 2016 the New York State Department of Environmental Conservation (NYSDEC) listed two long-chain per- and polyfluoroalkyl substances (PFAS)—PFOA and PFOS—as hazardous substances. However, NYSDEC did not publish a remedial standard for PFOA or PFOS at the same time.
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On April 15, 2019, the U.S. Environmental Protection Agency (EPA) issued a prepublication draft of an Interpretative Statement clarifying the application of Clean Water Act (CWA) National Pollution Discharge Elimination System (NPDES) permitting requirements to discharges of pollutants to groundwater.
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On April 11, 2019, President Trump signed an Executive Order on Promoting Energy Infrastructure on Economic Growth which included provisions related to updating regulations linked to facilities which handle liquefied natural gas (LNG) and regulations associated to transporting LNG by rail. As I described in prior blog posts, regulatory changes are needed before LNG can be transported by rail tanker cars under applicable Hazardous Materials and Carriage by Rail regulations, 49 C.F.R Parts 172, 173 and 174, absent a special permit.
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In the final week of March 2019, the New Jersey Department of Environmental Protection (NJDEP) took two unusually broad actions regarding contamination caused by poly- and perfluoroalkyl substances (PFAS). On March 25, 2019, NJDEP issued a Statewide PFAS Directive, Information Request and Notice to Insurers (Directive) to eight chemical companies (the Respondents). NJDEP says that PFAS compounds are "ubiquitous in New Jersey" and calls them "a statewide public nuisance" because they resist degradation and bioaccumulate.
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On March 21, 2019, the Federal Energy Regulatory Commission (FERC) issued a Notice of Inquiry (NOI) seeking comment on possibly broad reforms to the scope and implementation of its electric transmission incentives regulations and policy under Section 1241 of the Energy Policy Act of 2005 (EPAct 2005), codified as Section 219 of the Federal Power Act (FPA), 16 U.S.C. § 824s.
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On March 6, 2019, the House Committee on Oversight and Reform, Environmental Subcommittee held a hearing entitled "Examining PFAS Chemicals and Their Risks." The purpose of the hearing was to examine (1) the health effects associated with per- and polyfluoroalkyl substances (PFAS) exposure, (2) efforts by the Department of Defense (DoD) to minimize exposure in and around military communities, and (3) the Environmental Protection Agency's (EPA) recently released action plan regarding these substances. Two members of Congress, Brian Fitzpatrick (R-PA) and Daniel Kildee (D-MI), spoke about the impact of PFAS contamination from DoD facilities in their districts.
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On Feb. 26, 2019, the U.S. Environmental Protection Agency (EPA) published its latest efforts to evaluate the toxicity of per- and polyfluorinated alkyl substances (PFAS) in accordance with its previously announced PFAS Action Plan. As previously discussed in blog posts here, here, here, here and here, PFAS are a category of man-made chemicals that have been widely used to make products because of their stain-resistant, waterproof and/or nonstick properties.
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On Feb. 26, 2019, the House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations will hold a hearing entitled "EPA's Enforcement Program: Taking the Environmental Cop Off the Beat."
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On Feb. 21, 2019, the Federal Energy Regulation Commission (FERC) issued a final rule revising its regulations governing public utility mergers or consolidations. The primary effect of this rule is to set a $10 million threshold on such transactions before public utilities must seek FERC's approval before completing these lower-market deals.
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The Farm Bill has long served as a vehicle for clean energy programs, and the 2018 iteration—the first update in four years—is no exception. While the bill doesn't make significant changes to most of the existing energy programs at the Department of Agriculture (USDA), which is significant in itself, it does expand the purview and the available funding for some of them. It's worth unpacking a few of these developments that could have an outsize influence on government energy finance.
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On Jan. 25, 2019 – just days before PG&E proposes to file its bankruptcy case – FERC issued an order asserting its concurrent authority to approve proposed rejection of wholesale power purchase agreements under the Bankruptcy Code. The order concludes that FERC and the bankruptcy courts have concurrent jurisdiction to address the disposition of wholesale power contracts that a bankruptcy debtor, like PG&E, seek to reject.
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As described in a prior blog post, the Massachusetts Department of Environmental Protection (MassDEP) held a public meeting on Jan. 16, 2019 at 10:00 a.m. ET at MassDEP's Boston office to consider the "Petition for Rulemaking to Establish a Treatment Technique Drinking Water Standard for Per- and Polyfluoroalkyl Substances (PFAS)"filed by Conservation Law Foundation (CLF) and the Toxics Action Center pursuant to MGL c. 30A, § 4 and 310 CMR 2.00.
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The Massachusetts Department of Environmental Protection (MassDEP) will hold a public meeting on Jan. 16, 2019, at 10:00 a.m. ET at MassDEP's Boston office to consider the "Petition for Rulemaking to Establish a Treatment Technique Drinking Water Standard for Per- and Polyfluoroalkyl Substances"filed by Conservation Law Foundation (CLF) and the Toxics Action Center pursuant to MGL c. 30A, § 4 and 310 CMR 2.00.
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On Jan. 3, 2019, the Solicitor General filed a Brief for the United States as Amicus Curiae in response to an order issued Dec. 3, 2018 which "called for the views of the Solicitor General" (CVSG) in connection with two petitions for writ of certiorari pending before the Supreme Court of the United States (SCOTUS).
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On Dec. 28, 2018, the Office of Fossil Energy of the Department of Energy (DOE) filed a notice in the Federal Register indicating its response to the 19 public comments received on its study entitled Macroeconomic Outcomes of Market Determined Levels of U.S. LNG Exports , and that its conclusions were available on its public docket. DOE had previously sought comments by notice published June 12, 2018.
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